Walters v. Prestidge
| Decision Date | 30 April 1867 |
| Citation | 30 Tex. 65 |
| Parties | ANDREW C. WALTERS, ADM'R, v. OBADIAH PRESTIDGE. |
| Court | Texas Supreme Court |
The court quoted the 49th and 50th sections of the act to regulate proceedings in the county courts, relating to the estates of deceased persons, and reviewed the previous decisions, and held, that the affidavit of authentication must state that “ the claim is just, and that all legal offsets, payments, and credits known to the affiant, have been allowed,” or equivalent words must be employed. Pas. Dig. arts. 1309, 1310, notes 483, 484.
It is not enough to say, “the within account, as charged against the estate of L P, is correct and just, after allowing all proper credits, to the best of his knowledge and belief.” This omits “offsets and payments,” and employs no equivalent words. Pas. Dig. art. 1309, note 483.
The claim, “properly authenticated,” is a condition precedent to the action of the administrator, as well as to a suit upon the claim. And this fact must be averred in the petition. Pas. Dig. art. 1310, note 484; 21 Tex. 425.
The 49th section is a limitation upon the authority of the administrator or executor to allow, and of the chief justice to approve, the claim, until authenticated by the affidavit therein prescribed. And the 50th section is a limitation upon the right of the holder to sue upon his claim, unless it has been presented, properly authenticated and rejected. Pas. Dig. arts. 1309, 1310, notes 483, 484.
“Offsets, payments and credits” were intended to comprehend every claim for money, of whatever character, existing in favor of the testator or intestate, and every right or equity which, if allowed, would reduce the claim presented. Pas. Dig. art. 1309, note 483.
The word “credits” has a limited as well as a general meaning; and, as used in the statute, it does not include “offsets,” as well as “payments.” See illustration in the statute about discounts and set-off. Pas. Dig. arts. 3443, 3444, notes 794, 795.
If equivalent words to “legal offsets, payments and credits” have been employed, they must be equally comprehensive, certain, expressive and exhaustive upon the conscience. 11 Tex. 96.
The court reviewed the cases collected in Pas. Dig. note 483, and held that the result of all the cases was, that if the administrator's objection goes to the person who makes the affidavit, he must state it in his memorandum of rejection; but if the objection be to the words of the affidavit, he need not state that fact, but may raise it for the first time when sued.
If the affidavit be wanting in any of the essential requisites prescribed by the law, the administrator is forbidden to allow the claim; and if he does allow it, his act is expressly declared to be of no effect. Pas. Dig. art. 1309, note 483.
The objection was raised by general demurrer, to which, after pleas to the action, was added special cause (the want of affidavit); and for this want the judgment was reversed, and the cause dismissed.
APPEAL from Rusk. The case was tried before Hon. REUBEN A. REEVES, one of the district judges.
Every fact necessary to a clear understanding of the case is succinctly set forth in the opinion. Nevertheless the following facts may serve as a guide in practice:
This was a suit instituted in Cherokee district court, on the 7th March, A. D. 1859, by Obadiah Prestidge, the appellee, against Andrew C. Walters, administrator of Larkin Prestidge, deceased, appellant, on an open account against said estate, one item of which was for $700, alleged services and attention rendered by said Obadiah for the said Larkin, his father, in his last sickness, which account was attempted to be authenticated for probate under the statute, by the following affidavit:
+-----------------------+
¦“THE STATE OF TEXAS, ¦)¦
+---------------------+-¦
¦Cherokee County. ¦)¦
+-----------------------+
This day personally appeared before me James D. Long, an acting justice of the peace in and for said county, Obadiah Prestidge, who made oath in due form of law that the within account, as charged against the estate of Larkin Prestidge, is correct and just, after allowing all proper credits, to the best of his knowledge and belief.
OBADIAH PRESTIDGE.”
“Sworn to and subscribed before me, on the 18th day of February, 1859.
JAMES D. LONG, J. P.”
On which account was also indorsed the following rejection of the same: “I have examined and rejected this account, February 22, 1859.
A. C. WALTERS,
Administrator of Larkin Prestidge, deceased.”
The only pleadings of defendant, Walters, considered material in the attitude of the case, is a general exception filed on the 24th day of March, 1859, and a plea specially impeaching the validity of such affidavit to probate said account, filed on the 14th September, 1860. Judgment rendered on the 30th March, 1861, overruling defendant's exceptions to plaintiff's petition and affidavit and claim, and judgment rendered in favor of plaintiff for the sum of $740 and costs, from which defendant appealed, and assigned the following error committed by the court below: “That the court erred in overruling defendant's (Walters') exceptions to the petitions, original and amended, of plaintiff, filed in said cause, and particularly in holding, that the claim sued on had been sufficiently authenticated under the statute for probate before presentation to the administrator for acceptance and before institution of suit.”
Brown & Brown, for appellants. To this error, particularly assigned, counsel for appellant, Walters, would most respectfully call the attention of the supreme court. They quoted the 49th and 50th sections of the act. O. & W. Dig. arts. 757, 758; 1 Kent, Com. 462.
A set-off takes place only in actions on contracts, and are not allowed in actions arising ex delicto. Bouv. Law Dic. tit. Set-off; see also O. & W. Dig. art. 361. And, independently of the general distinction, it will be seen by an examination of our statute of discount and set-off and reconvention. O. & W. Dig. pp. 101 and 102.
Again, if this claim was not properly authenticated when presented to the administrator, it was his duty, after an examination of the same and the defect observed, to reject it, as the memorandum shows was done in this case. This rejection, if for want of proper authentication, may be general, as in this instance. “If the rejection be general, it will be presumed to be on the merits, and not for the want of proper authentication, unless this be wanting in some of the requisites especially presented by law.” Dunn v. Sublett, 14 Tex. 521. If from neglect or fraudulent design the holder fails to make the proper authentication, it is at his peril. It is certainly not the duty of the administrator to point him to his error, and advise him to amend his affidavit. All should turn with holy horror from amended swearing. [The argument of these gentlemen exhausted the Texas cases bearing on the subject, but, as they are reviewed by the court, it has been deemed unnecessary to give the full brief.]
Donley & Anderson, for appellee. This case depends on the sufficiency of the affidavit made by the appellee to the account before presenting to the administrator for acceptance.
This affidavit is not in the exact words of the statute. The statute requires that the claim shall be accompanied by an affidavit that the claim “is just, and that all legal offsets, payments, and credits, known to the affiant, have been allowed.” If a payment had been made, the estate, in justice, should have credit by the amount paid; and on this we submit that a payment would be included in the word “credits” which is used. The word credit is more comprehensive than the word payment or offset, and includes both the latter. In commercial law, credit is understood as opposed to debit. Credit is what is due to a merchant; debit what is due from him. 1 Bouv. Law Dic. The word offset we believe is not used by Bouvier. Mr. Webster says of offset: “To set off; to set one account against another; to make the account of one party pay the demand of another.” If, then, one account may be made to pay the other, the party holding an account against his creditor is legally entitled to a credit for that amount on the debt he may be owing. If appellee had known at the time of making the affidavit that the appellant held his note, given for a valuable consideration, or any just demand that might be held a legal offset, he could not with propriety and truth say that all proper credits had been allowed. If in this case the appellee was in fact owing to Larkin Prestidge, at the time of his decease, $100 money borrowed, whether he had given note or not, it would constitute a just claim against him in favor of the estate. If disconnected from the transactions upon which this suit is founded, it would in law be a “““set-off;” or, to use the statute language, an “offset,” to which he would in law be entitled, to have applied as a credit on the account due from him to the appellee. If the debt was owing by the appellee to the intestate, it constitutes a “credit” to which the estate would be entitled, and we submit would be embraced in the words used in the affidavit. And that, if such debt has been owing by appellee to the intestate, the perjury might be assigned on his affidavit in this case.
Further, if the administrator intended to rely upon the insufficiency of the affidavit as a reason why he would not accept the claim, should he not have stated, as a reason why he rejected it, that it was not properly proved;--that the attention of the appellee being called to the insufficiency of the affidavit, the statement made by the administrator at the time of rejecting the account was calculated to draw the mind of the appellee from the sufficiency of the affidavit?
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